Volume 9 — Cowen's New York Reports

<p>, Possession oi fade evidence °fAquitclaim deed> or deed without warranty, by one having no ti-tie at the time wiiinotoperate ti°e subsequent" acquired by the grantor, otherwise of a deed with warranty.</p> <p>A judgment debtor holding a deed of lands is seised as to his creditor, though his deed be not recorded pursuant to the statute. Hence, a conveyance or mortgage, bona fide, by him, intermediate the judgment and a sale on a fi. fa. will not defeat the latter sale; for this relates to the time of docketing the judgment.</p> <p>A grantee, assuming the payment of a debt due from his grantor, is a sufficient consideration to make a purchase of mortgage of land valid within the registry acts, as against an unrecorded deed.</p> <p>Conceded, however, that actual notice will supply the place of registry, and that notice to the agent is notice to the principal.</p>

-On depmrr.erJo the.dpdlqTaJipn. -iThe plaintiffs.declared jn case,.“ for that whereas the defendant, on, &p.,.at, &c., ■' ■ - ..........• -right and liberty of making,, constructing, using and vending :,a certain flax =and:hempdressing¡maehme,-within the counties of Orange and ¡Rockland, &c., he,¡the said, defendant,.then.anddhereprofessing to havedull-power and lawful authority in him vested, - to .make, .use and vend inthe UnitediStatesrof, America, the-saiE machine,…

On error from the Monroe C. P. The placita of the record in the C. P. was of the 4th Monday of March, 1837. -Muniford,de,clared pgain^t;Smi|h ¡jp.deljt, for fhat whereas the .plaintiff,.on the 2.8th qf jF^bruary, .1827, before MQse_s1Ch,apin, jEsg.,jone,of fjjje justices .of the.peace of the county of Monroe, at, &c. by the judgment of the said M. C., justice,of the peace as .aforesaid, recovered against .the .said defendant,, as .well a certain debt .of 50 dollars as…

Slander, tried at the Rensselaer-ci’rcüit, when a verdict was found for the plaintiff on a case which-is sufficíéntly stated in the opinion of the court. i The case was argued by

<p>Executors are one person in íaw; fnd aots several, reiaih^ry,° sale dor release of the testators goods, are the ^ThJsfone of t”0 executors note Molding taeh^estator0* So he may</p> <p>pledge such note or assign it, as collateral security for a judgment obtained against the estate of his testator.</p> <p>The assignee of a chose in action, who takes it as collateral security for a debt, has a power coupled with an interest, and will be protected as an assignee against the release of his assignor made after notice of the assignment to the debtor.</p> <p>To constitute such an assignee of a chose in action as courts of law will protect against the acts of his assignor, the assignment need not be absolute, or of the whole subject matter It is enough that it carry to the assignee a power coupled with an interest.</p>

Case by consent. The plaintiffs declared on a note of $5000, dated December 26th, 1816, made by six persons, three only of whom were taken or appeared, q']le defence relied on was, that on the 16th of January, 7 J 7 1823, the plaintiffs made an agreement in writing with Reynolds, one of the makers, reciting that the balance then que on the note was $1157 09.

Trespass quare dausum fregit# tried at the March circuit# 1827, in Orleans county, before BirdSall, C, Judge# when a *verdict was taken for the plaintiff for 5? 60, áüblent to the opinion of this court oh a case containing facts J i * i rr> • i . . , ° wiuch are sufficiently stated m that opinion*

Motion by the plaintiff to set aside the report of referees, who reported nothing due to the plaintiff. The case will be found sufficiently stated in the opinion of the court.

<p>To warrant a recovery as for money had and received, paid under a special con-contract6' S‘to convey land) a strict performanee must be the same as if he the .special ^^act its^ contract has r^cinded^or impliedly so, having been ^"aiongtime* or the party sought to be charged having acted inconsistent with it.</p> <p>a party covenanted to pay ¡^nsLhnentf on completing to have a^eedj and h? tool5 possession, and continued it for some time, making Thus where making par- ^ £nluyfl‘ ed to pay, and ^®k sion; in an action for money had and received to recover back the money paid, held, that it would not lie.</p> <p>And the covenant to pay being independent, held, no breach that the defendant had never any title to the land; for non constat, had the plaintiif paid, that the defendant might not have procured a title and conveyed.</p>

Trover, to recove? the value of a quantity of staves, tried at the. Monroe circuit, March 15th. Birdsall, C, Judge. 1827, before • - *To show title, the plaintiff produced a written contract with ope Coonrad, dated January 4th, 1825, by which Coonrad agreed to deliver to the plaintiff, on the canal, . w ' 40,000 pipe staves, and 40,000 hogshead staves, at $14 per thousand for pipe, and $9 per thousand for hogshead staves.

<p>A nonsuit before a justice, after hearing proofs, cannot be reviewed by certiorari; but only by appeal.</p> <p>In assumpsit by an attorney against his client, for fees, the attorney need not show that a copy of the bill of costs was served on the client before action brought.</p> <p>Nor, on producing a taxed bill, need he show that notice of taxation had been served on the client.</p> <p>The confession of a debt by one of several partners, after the dissolution of the partner, ship, is inadmissible evidence as against the other partners.</p> <p>% In an action for fees by an attorney against his client, the latter may show, under the gsneral issue, that the attorney conducted the business so negligently that his services were of no benefit to the client; and thus defeat the whole claim. But if the evidence be merely in mitigation or diminution of the value of the attorney’s services, then notice should be given with the general issue.</p> <p>Proof, in such an action, that j'udgment as in case of nonsuit was obtained against the client, is not, per ee, evidence of negligence.</p> <p>An attorney is not bound to proceed in a cause unless his legal fees are h ndered or secured to him, if he requests that this should be done. - -</p>

<p>Case agreed upon at the circuit, which is sufficient!) stated in the °Pinion of the court.</p>

<p>Error from the Washington common pleas, founded on a bill of exceptions.</p>

<p>Ejectment, for two small adjoining pieces of ground; one covered by a stable, and the other by hay-scales; the „ , . „ , - , „ . , , former being part of the two acre lot alleged to have been conveyed by the lessor of the plaintiff, for the purpose of having the Chenango court-house built upon it, and on part of which the court-house was built.</p> <p>The cause was tried at the Chenango circuit, January ° * v 31st, 1827, before Nelson, C. Judge. .</p> <p>At the trial, the evidence to show that the defendant was in possession of the hay-scales, was, that he had removed them from the place where the stable now stands, on to the land of the lessor of the plaintiff; and had not afterwards interfered with them.</p> <p>The defendant was gaoler, and possessed the stable, and occupied it.</p> <p>■As to the two acres; the lessor of the plaintiff, by deed of June 3d, 1807, between himself and wife, of the first part, and the supervisors of Chenango county, of the second part, expressed, “ as well for and in consideration of accommodating *the said parties of the second part, with a proper and convenient site for erecting a court-house and gaol for said county, as for increasing the value of property • ° r sr J owned by- the said parties of the first part, adjacent to the hereby granted premises,” conveyed them to the supervisors; habendum to them, “ their successors in office and assigns, for their own proper use, benefit and behoof forever with covenants of seisin, quiet enjoyment, further assurance and warranty.</p> <p>It appeared that this deed was executed at the time when the site for the court-house was established. Two other places were talked of by the commissioners for fixing thé site; but the lessor of the plaintiff offered them, that if they would establish the site where the court-house now stands, he would convey the land to the county.</p> <p>The defendant offered evidence that the land of the lessor of the plaintiff was increased in value for that cause. This was objected to, but the evidence was received.</p> <p>The judge ruled that the defendant was not in possession of the hay-scales; and therefore the plaintiff could not recover the ground covered by them.</p> <p>The plaintiff objected that the consideration of the deed was not sufficient to give it effect. The judge decided that the deed was valid.</p> <p>The plaintiff then contended that there was an implied condition in the deed, that if the premises should be converted to any purpose other than a court-house and gaol, the deed should be void. The judge decided otherwise ; and the plaintiff was nonsuited.</p>

Ejectment for land in Genesee, tried at the circuit in that county, July 6th, 1826, before Birdsall, C. Judge, when the case was as follows: • On the 4th day of June, 1819, one Jeremiah Parker, father of the defendant, contracted with the Holland Land Company, for the purchase of the premises in question, and entered into a written agreement, by which J. Parker agreed to pay them $175, the amount due them, in six equal annual instalments, as the consideration money;, (part…

Ejectment, for part of military lot No. 43, in the town of Sempronius, in the county of Cayuga, tried at the c.ir*' cuit in that county, January 23d, 1827, before Throop, C T 1 Judge. On the trial, the plaintiff proved a patent from the state to one Schreeder for the whole lot.

Error from the Dutchess common pleas. The plaintiff helow, Armstrong, declared in the court below in covenant ^or rent agaiñst the defendant there, Wheeler, as assignee of Jacob Loop, to whom the plaintiff below had leased certain premises, reserving an annual rent of ten dollars.

Debt for an escapé; tried at thé Seneca circuit, January 15th; 1828, before Tinto op, C. Judge. The declaration contained one count, charging the defendant with the escape of one Phinehas Collver, from a ca. sa. on the 31st July, 1826; Collver being charged in the execution thereon at the suit of the plaintiff. The defendant pleaded, 1. Nil debit; 2.

Ejectment for lot number 75, Granby, (formerly Hannibal,) tried on the 29th day of December, 1826, at the Oswego circuit, before Williams, Circuit Judge. 6 ’ b At the trial, the plaintiff gave in evidence the exemplifies tion of a patent-from the people, &c. to Abraham Barnes, of #the lot in question, bearing date July 9th, 1790, and which passed the secretary’s office on the same day.

Assumpsit : tried at the Erie circuit, in September, 1826, ' r before BlRDSALL, C. Judge. The declaration was on a special contract. *At the trial it appeared in evidence, that on the 17th ol june^ |g20; the plaintiff and defendant entered into a writ-7 . ten contract, which was deposited m the hands of A. W. Walworth, of the state of Ohio, who was examined as a witness under a commission, and set out, in his answer, a copy of the contract, retaining the original.

<p>Ejectment, tried at the Madison circuit, March 28th, 1827, before Williams, C. Judge.</p> <p>The case is stated in the opinion of the court.</p>

<p>Though a deed conveying land or other real estate not lying in grant, be altered even feloniously, after its execution, this does not avoid the title to the subject conveyed.</p> <p>The lessor of the plaintiff owned lot 66, and the defendant lot 72, and the field book of the original survey was burned. On a question of what was comprehended in lot 66, heldx that evidence was derivable from maps copied from the original survey.</p> <p>What evidence admissible in locating the subject of a deed of land. (See the case.)</p> <p>Semble, that an interlineation in a deed, not noted, and appearing to be of different ink from the rest of the deed, calls for explanation from the one wishing to support the interlineation as genuine.</p>

Debt on bond; given by the defendants to the plaintiff as ° i. r , . sheriff of the comity of Niagara, (now the county of Erie,) tried at the Erie circuit, before Birdsall, C. Judge, on the 7th day of September, 1826.

Ejectment, tried before Throop, circuit judge, at the Onondaga circuit, on the 8th day of February, 1827. *The action was brought to recover a part of lot numbe 43, in the town of Cicero. The plaintiff called as a witness Abraham Gridley, clerk of the county of Cayuga, who produced the exemplified copy of the balloting book belonging to the office of the clerk of Cayuga county, and filed in that office pursuant to statute.

<p>Assumpsit, tried at the Madison circuit, March, 1827, before Williams, C. Judge.</p> <p>^ec^ara^on contained four special counts on an assumpsit by the defendant to transport boards on the canal to Albany within a certain time, which he neglected to do. The 5th count was the ordinary one in assumpsit, against the defendant as a common carrier.</p> <p>The proof at the trial was, that the defendant engaged, in writing, to convey the boards within a certain time; but was prevented, and" the boards were detained by the freezing of the canal.</p> <p>The defendant moved for a nonsuit, on the ground of a variance between the contracts stated in the several counts, and the one proved. The motion was overruled.</p> <p>The defendant then moved that the plaintiff be compelled to elect which count in his declaration he would rely upon. This motion was also overruled.</p> <p>The defendant then gave proof calculated to show that the time of transportation in the special contract set out in the declaration and" proved in evidence was, subsequent to *the first contract, enlarged by parol, on condition that the freezing of the canal should prevent the transportation within the time mentioned in the original contract.</p> <p>The judge charged, that if the jury found the extension of the time, then the defendant was liable as a common carrier under the 4th count, and the question would be one of diligence.</p> <p>Verdict for the plaintiff.</p> <p>In the copy of the declaration served on the defendant, no promise was laid in the 4th count.</p> <p>At the last February term.</p>

Assumpsit, tried at the Jefferson circuit, on the 20th of ' December, 1826, before Williams, C. Judge, when a ver¿ict Weis found for the plaintiff.

<p>Wages cannot, in general, be recovered by a nT'freigM^as been earned, and there is no fault of the master or owners occasioning the failure.</p> <p>It is not sufficient to entitle seamen to wages that the freight be lost without their fault. It must be owing to the fraud or other wrongful act, or some fault of the master or owner: or at least some act or omission on the part of the master or QWfler, over which the seamen can have no possible control.</p> <p>The defendants shipped the plaintiff, 3- seaman, on a voyage from New York to Newry, in Ireland, and thence back to a port in the United States : and the vessel was libelled in the Irish admiralty by one pretending to be owner, and the crew turned ashore, and dii charged by the captain. The vessel was detained more than a year and was finally restored; hut, in the meantime, had become so much deteriorated as to be unworthy of repair, and was abandoned in Ireland to the underwriters, and never returned to the United States. Held, that this was not the exercise of that superior force over the vessel, which should exempt the owners from liability to pay the plaintiff his wages, or damages for discharging him from the return voyage; and held, also, that the master and owners were not entirely free from fault; that they were hound to understand and risk their title; or, if it was contested in a mere civil proceeding, to take effectual means for liberating it, if" possible, on security, pendente lite so as to prosecute the voyage, and enable the vessel to earn freight.</p> <p>An action will not lie at the suit of a seaman against the owners, under the act of con gress, (7 Cong. sess. 2, ch. 62, § 3.) And see Ogden v. Orr, (12 John. 143, S. P.)</p>

demurrer to the second plea of the defendant. The declaration was in trover for a promissory note drawn by one Luthier Marsh, by which he promised to pay the plaintiff 435 dollars, Plea, secondly, that before this suit was commenced, and shortly after the closing of the polls at the election of November, 1826, Marsh and the plaintiff, at Pompey, in Onon- ^ daga county, made a bet of $435 upon the event of the then ^ate election of governor of the state of New-York, they…

<p>The trail script of a jus tice’s judg ment, to be filed with and entered by the clerk of the county, pursuant to the 9th section of the statute, (sess. 41, ch. 94,) and the 20th section of the statute, (sess. 47, ch. 238,) need not show the proceedings before the justice, which respect the regularity of the judgment, or give jurisdiction.</p> <p>The transcript being duly entered, is, per se, a lien on the lands of the judgment debtor; and proving the transcript, filing and entry, is sufficient in deducing a title by sheriff’s sale under a fi. fa. The justice, or any other proof of the judgment before him, need not be produced.</p> <p>If the recital of executions in a sheriff’s de.ed of land describe them correctly in several particulars, but add others which are inaccurate, the latter may be "rejected as surplusage. All that is necessary is, that the dee,d show that the sheriff acted ¡under the authority of the executions, even adijiitting a recital to be important.</p> <p>But the execution need not be set forth or recited in a sheriff’s deed; and if recited and described inaccurately, the variance will not affect the deed.</p> <p>In making out a title under a sheriff’s deed, it appeared that the debtor in the execution was in possession several years before it issued, and" before the judgment; and that the defendant in the ejectment held under hipi as tenant. Held, that the defendant was estopped to show title out of the debtor.</p> <p>Where the plaintiff ¡n ejectment made title under a purchase upon execution against the tenant of the judgment debtor, the tenant being defendant in ejectment, and showed by parol that the defendant confessed he held under the debtor by lease; and the defendant gave evidence that it was a written lease, and then objected t)iac the plaintiff should produce the lease, or show notice to produce it: held, that the production of the lease lay with the defendant; and he omitting to produce it, pr give legal proof of it, the lease should be taken to h.ave expired, or not to be a subsisting lease so as to prevent the plajnfiff's recovery.</p> <p>Forms of all the documents necessary in the deduction of title to land under a justice’s judgment, yip.: The timiscript, execution, and endorsements, sheriff’s certificate of sale and sheriff’s deed. Note {a) to this case.</p>

On error from the Jefferson C. P. In the court below the bank declared against Wood, as endorser of a note, dated May 14th, 1825, made by one Heath for $150, adding the common count for monies, &c. The breach or refusal to pay, in the conclusion of the declaration, referred to the count on the note only. The defendant below pleaded, 1.

Ejectment for lands in the town of Brunswick, Rensselaer county, on a joint and several demise from all and each of the three lessors of the plaintiff tried at the Rensse]aer cjrcujt before Woodworth, J. The cause went down there for a trial a second time, on the order of this court granting a new trial, the ground of which may be seen in 6 Cowen, 377, S. C. On the. trial, the lessors claimed as devisees, not as heirs, of Benajah Brown deceased ; and the defendant admitted…

<p>On error from the C. P. of Delaware.</p>

<p>" _ Trover ; tried at the Chenango circuit in January, 1827, before Nelson, C. Judge ; when a verdict was found for the plaintiff, subject to the opinion of this- court</p> <p>A motion was now made for a new trial, on a case, the substance of which will be found in the opinion of the court,</p>

Ejectment for, 36 acres of land, in the town of Vernon, in the county of Oneida ; tried at the circuit in that county, on the 3d of October, 1826, before Williams, C. Judge.

Ejectment for 129 acres of land, being the west half of lot No. 2, of the 7th allotment, according to the partition 0f one fourth (formerly the Teunise or Van Vechten share) \ j z of Hosick patent, which partition was made by P. Schuyler, J* Van Ingen and H. P. Schuyler, in 1800. This lot No. 129 is *a part of the original lot No. 51, in the general partitim of the patent made by Bleecker, May 27th, 1754.

<p>Where a patent of land was granted to a soldier who died intestate without having a father and brothers, before our statute of descents, m consequence of which the ^¿uo holder brother as at common law, who conveyed ^® November, ^ent to^tbe staí“te °f de* scents, to a bona fide purthat8tli that the grantee of the brother should be preferred to the subsequent grantee of the father, who would have been preferred by the statute of descents; this being a ease within the exception of the 8th section of the statute of 1803, (sess. 26, ch. 88), and the 7th of the act of 1813. (1. R. L. 305.) The words “held by bona fide purchasers or devisees,” used in those acts, do not contemplate an actual possession and improvement of the lots, but any one holding the legal title.</p>

<p>Debt on bond for the non-performance of an award, tried at the Onondaga circuit on the 12th of October, 1826, before Throop, C. Judge.</p> <p>The declaration was thus: “That whereas the defendant, heretofore, to wit, on the 19th day of September, A. D. 1825, at, &c. by his certain writing obligatory, sealed with his seal (and now shown, &c.) the date whereof is the the same day and year aforsaid, acknowledged, &c.” The penalty was $500. The condition set forth was, “that if the defendant, his heirs &c. shall and do, &c. well and truly stand to and obey, abide by, perform, fulfil and keep the award, Sec.” (general submission) *“so as the said award be made in writing, under the hands, &c. and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on or before the 18th day of January next, (after the date of said writing obligatory meaning,) then the said obligation to be void or else to remain in full force.” The declaration then set forth the award and breaches. Plea, non est factum and performance.</p> <p>The oyer of the bond agreed in date and other particulars with the declaration.</p> <p>At the trial, the plaintiff proved the execution of the bond by Hopping, the subscribing witness. Another witness for the plaintiff, (John Wilkinson,) proved that the original bond, being of the date declared on, limited the making of the award to the 31st of December then next; and thatthe time for making the award was afterwards ex tended to the 10th of January, 1826, by erasing the words December and 31st, and inserting the words 10th and January in the bond, with the consent of both parties. The plaintiff further proved that, on the 10th of January, the time secondly appointed as above for making the award, it was agreed that the time should be extended to the 18th of January by both parties; and one witness swore that, after the agreement, he saw some person in the act of altering the" bond from the 10th to some future day, but did not recollect what day.</p> <p>The defendant’s counsel objected, that by the alteration, the bond became a new one; and the plaintiff ought to have set it forth as bearing date the 19th day of September, 1825, and averred that it was executed and delivered on the 10th day of January, 1826, the day when the last alteration was made, and as this was not done, there was a variance between the bond set forth in the declaration, and the one proved. The court sustained the objection; and nonsuited the plaintiff.</p>

Replevin. Demurrer to the plaintiff’s- pleas m bar to the defendant’s avowry and cognizance. The declaration contained 8 .counts; all alleging the taking by the defendants of 200 bushels of corn, the property of the plaintiff, value 100 dollars, on the first of November, 1825. The two first counts alleged the taking at a certain corn house belonging to Rufus Henry, situated on the lands owned or possessed by Henry, in the town of Lebanon, in the county of Madison.

<p>In false impnsonment, • brought by a defendant in ejectment against a lesSSS ment suit, for ca. M^on'the ground of the ing been sub-aside^o/irreguianty, it is not sufficient to sustain the ac-rest’was* maffii on a ca. fa. the nominal ejectment*1 suit against the demust be some collateral evineot the ex-the*judgment) an^ *th leSS°r cution. The tween^hemm of the judgment and execution does not sufficiently and it should theShies™r*ho* his attorney, cution*orthat one of them was in some way privy to it, or had re-it.</p> <p>In ejectment, the execution for costs against the defendant, properly issues in the name oi the nominal plantiff alone.</p>

Assumpsit, tried at the Monroe circuit, November, 1826, before Bird sail, C. Judge. The declaration contained the common money counts, and also a count for a certain messuage or tenement and . premises, *with the appurtenances, sold by the plaintiff to the defendant, at his instance and request; also a count for goods sold, and on an account stated.

<p>All the partoabmC“fforeclosure in the court of chancery are stop.</p> <p>ed from questioning the title derived from the decree of sale.</p> <p>A grantor, having no title conveys with covenants of seisin, quiet enjoyment and warranty. He afterwards acquires title. This in general, enures to the benefit of the grantee by way of estoppel against the grantor, who cannot recover the land from the grantee in virtue of the subsequently acquired title. [1]</p> <p>But where a grantor recites in his deed that the grant is subject to a certain claim, (e. g a mortgage) and then covenants that he is seised, that the grantee shall quietly enjoy, and that the grantor will warrant against all claims, the recital qualifies the covenants ; aud prevents their application to such claim.</p> <p>Where there is any thing for a warranty to. operate upon, the doctrine of estoppel does not apply.</p> <p>Nor does it apply except as between the -same parties acting in the same character.</p>

<p>The parties m suggestion of the justice to waive their pleadings, and go into their cause on the merits. On judgment being given, one of the parties appealed; and the justice returned the agreement. Held, that no objection could have been taken to the form of the pleadings before the justice, and that the agreement extended also to the cause in the C. P. on appeal; and that no objection to the form of pleadings could be taken there. [1]</p> <p>S. owning property, pointed it out to a constable as belonging, one fifth of it to 33., against whom the constable had an execution, and was inquiring of the property with a view to the levy. The constable levied, S. receipted the property to the constable, and S.’s rignt was afterwards sold and bid off by the third person, Iona fide, under the execution. S. men sold the property; and an action by the purchaser for the avails, would have shown that 33. nad. no title, inasmuch as he had not fulfilled a certain contract, on which the one fifth was to vest in him. Held, inasmuch as notice was not given of the contract to the purchaser, he had a right to purchase upon the faith of S.’s admissions, who should he estopped, under the circumstances, to deny B.’s interest; and that S. should account to the purchaser for the value of the one fifth. [1]</p> <p>Where several parcels of property are sold under an execution at one bid, though the sale might have been fairer, and the property brought more in separate parcels; yet a third person, not a creditor, has no right to object to the manner of sale. The title passes by such a sale as to strangers.</p>

On error by Russell, to the Delaware common pleas, founded upon bill of exceptions in a suit there between Russell, plaintiff, and Scott defendant, in which there was a verdict and judgment for the defendant. The facts are ... sufficiently stated in the opinion of the court,

<p>On érToir from the supreme court. . 5 Obweh, 281, S. C. by the title of Wheeler against Raymond.</p> <p>The cause was argued here by</p>

A note of this case, and the decision, now farther noticed, is given in 8 Cowen, 746. The following opinion was delivered, on the question of amendment there mentioned, by

On error frdm the supreme court, The action below was covenant, by Roosevelt againt Dale, administrator, &c. on sealed articles, dated September 16th, 1813, reciting that Roosevelt had discovered a coal mine tin the bank of the Ohio river, (describing the mine and the land containing it).

(1 Hopk. Ch. Rep. 569 to 573, S. C.) Sandford, Chancellor, assigned the reasons for the decree of the court below, as in 1 Hopk. Ch. Rep. 573 to 575. The cause was argued here by

The case below was as follows : Joseph Lasnier Dulary died in the city of New York, some time in January, 1807, leaving the whole of his estate by will to his only daughter, Mrs. D’Aitz, one of the respondents, she then residing in Gaudaloupe. The will appointed her executrix, and Jacob Le Roy of the city of New York, executor. Jacob Le Roy alone proved the will.

The appeal was from that part of the decree which affirmed a decree of the circuit court, dismissing a supplemental bill filed to bring in judgment creditors in partition. For particulars, vid. 1 Hopk. Ch. Rep. 501, S. C. Sandford, late chancellor, assigned the reasons for the decree, as in 1 Hopk. Ch. Rep. 502 to 505, S. C.

court of chancery. The appellant filed his bill in the court below, stating that he had, on the 6th of September, 1810, mortgaged certain real estate in Albany to the respondent, in fee, to secure the payment .of $10,000, with a bond as collateral security. That ithe respondent filed-his bill in chancery, praying a sale of the mortgaged premises, and payment of the mortgage debt by the avails.

<p>On appeal from the court of chancery. The case below was, that Jacob I. Vanderheyden, being seised in fee of lots No. 241 and 242 in Troy, besides other real estate in Rensselaer county worth about $20,000, if free of encumbrances, on the 10th of September, 1810, conveyed lots 241 *and 242, to the appellant, with covenants of warranty, free of encumbrances; these two lots were worth about $1200.</p> <p>On the 8th of April, 1809, a judgment was perfected in favor of J. D. Vanderheyden, for $3675 ; and on the 5th of September, 1810, in favor of John Kimberly, for $2013, and March 27th, 1811, in favor of H. & G.'Váil, for $203 ; the whole against J. I. Vanderheyden, and which were liens on his real estate. Lots 241 and 242, were also included in and subject to a mortgage on them and other real estate, given by J. I. Vanderheyden, the elder, in 1792, to secure $375, to Levinus Lansing.</p> <p>Several other judgments were obtained against J. I. Vanderheyden, subsequent to the execution of the above mentioned deed to the appellant, which were liens on the residue of his (J. I. V’s) real estate.</p> <p>On the 13th of May, 1812, under a fi.fa. upon the Vail judgment, the sheriff of Rensselaer county sold all the real estate of J. I. Vanderheyden, to the respondent Dickenson, for $3410, subject to previous incumbrances which were known to the purchaser. After satisfying the Vail judgment the residue of the $3410 was applied in payment of judgments junior to Vail’s. On the 12th of March, 1813, the respondents, or one of them, having purchased the ICimberly judgments, lots 241 and 242 were sold by the sheriff under a ft. fa. upon that judgment, for $650 to the respondent Dickenson.</p> <p>On the 6th of April, 1813, J. I. Yanderheyden died.</p> <p>Upon these facts, on a bill filed by the appellant in the court below, Kent, late chancellor, decreed to him the value of lots 241 and 242 ; but made the 650 dollars, bid at the sheriff’s sale, the measure of such value.</p> <p>The decree proceeded upon principles stated by the chancellor in 5 John. Ch. Rep. 235, S. C., which see for the facts more at large.</p> <p>The present appeal was from so much of that decree as fixed the standard of value at the bid of the purchaser from the sheriff.</p>

<p>On appeal from the court of chancery.</p> <p>The case is fully stated in 1 Hopk. Ch. Rep. 579 to 582. The decree below was against the appellants, the reasons in support of which were now given by Sandford, late chancellor, as in 1 Hopk. Ch. Rep. 5S3 584.</p>

<p>The admission of one partner, either of an account, or any fact, made after the dissolution of the partnership, is not admissible as evidence, to affect any other member of the firm.</p> <p>A person indebted to the same creditor on different accounts or demands, and making payment, may apply the payment to which account or demand he pleases 5 and if he fails to make the application, the creditor may apply the payment to which account or demand he pleases.</p> <p>Where neither party makes an, appropriation, the law will appropriate the payment upon certain rules of presumption. The authorities to this point examined.</p> <p>Where A. has a demand against B. and C. and a more recent demand against B. alone, who makes an indefinite payment, semble the law will appropri» ate the payment first to the extinguishment of the individual demand, and then the residue, if any, to the extinguishment of the joint demand, though if both demands were against B. alone, it might appropriate the payment first to the extinguishment of the oldest debt.</p> <p>But in such case A. cannot wait after the payment, till B. becomes farther indebted, and then appropriate the payment, to the extinguishment of the newly created demand, leaving the previous demands unpaid.</p> <p>In no case can a creditor who receives payment generally, retain and appropriate it to the extinguishment of a demand created after the payment, leaving a prior demand unpaid.</p>

On the 2Qth of March, 1825, the respondents filed their bill in the court below, against the executors of Philip Jacobs, deceased, to… Held: that in case of a charity, the king pro. bono publico, has an original jurisdiction to superintend the care thereof; so that abstracted from the statute of Elizabeth, relating to charities, and antecedent to it as well as since, it has been every day’s practice to file informations in chancery in the attorney-general’s name, for the…

The court of chancery having made a decree in this cause in favor of the respondent, which he insisted was an interlocutory decree, the appellants, thinking it a final decree, waited more than fifteen days, (the time limited for appeals from interlocutory decrees,) and then filed their appeal to this court with the assistant register of the court of chancery, making the proper deposit. The appeal was regular, and it was in due season, if the decree had been a final one.

On error from the supreme court. This cause was reported, as decided on the .case subject to the opinion of the supreme court, in 5 Cowen’s Rep. 295. Several points raised below, as mentioned in the former report, were not passed upon by the court.

On error from, the supreme court. The record upon which the cause was discussed and decided here, is given at large, and verbatim, in 7 Cowen’s Rep. 166, S. C., by the title of H. B. Lambert against… Held: should be added for the county of Middlesex.

On error from the supreme court. (7 Cowen, 179, S. C.) John Stafford brought trover for a horse against Roof, in the C. P, of the city of Albany, called the mayor’s court; and the cause was tried there ill October, 1824.

On error from the supreme court. Abram Allen, as survivor of AbramEphraim Allen, two partners in the practice of - physic, sued Anthony I. Blanchard in a justice’s court of the county of Washington ; and -declared as such survivor, for- medicine and attendance by the -firm, in the life time of 'Ephraim,. Plea, ■ non -assumpsit.

J. E. Lovett, for Gleásóri, moved- that the writ of error in this- cause from the supreme court, be quashed. The papers for the motion presented the following, state of facts Pinney sued Gleason in the C. P. of Onondaga» county, on ■several notes, dated- the- 30th of June, 1820, for certain sums payable in salt at so much the bushel, at certain times.

On error from the supreme court. 4 Co wen,.432, S. C. by the title of Farley v. Cleveland. The case was argued.here by ■

<p>On error from the supreme court, 6 Cowen, 642, S. C by the title of The People, ex reí. Ingersoll, ti. Garey.</p> <p>The cause was argued here by</p>

On error from the supreme court. 5 Cowen, 248, S. C. by the title of Jackson, ex dem. Lansing^ ti. Law and Nélson. The cause was argued here by

<p>Case, upon verdict, subject to the opinion of the court, before his honor Mr. Justice Woodworth, Albany circuit, Oct. 3d, 1821,</p> <p>The action was assumpsit on a promissory note by E. x - - Reed, the last endorsee, against Smith, his- immediate endorser. The note was for $800, dated May 29, 1819, made by D. Parker, and endorsed by five several persons, The formal proceedings to charge the endorser being admitted, the only question was whether this note was usu"ius. On this subject the proof was, that in April 1816, . , . - - t -i , .-i . maker, being pressed tor money, applied to the plain- / for the hire of $800. The plaintiff said he had not • . the money, but he thought he could procure it of Roswell Reed, his son-in-law, whose rule, however, he believed it</p> <p>was to take a premium *of 7 per cent.; though if he had the money to lend himself, he should charge but 7 per cent.; it being contrary to his principles to take usury. The maker said he Was Willing to give th'e per cent.; and a few days after left his note for $800 with the plaintiff, endorsed by Amasa Parker, payable February 1st, 1817. The note Was to be returned, if the money could hot be procured. This was on Fridayevening or Saturday morning, of the week next ensuing the first application for the money. On the same Saturday, R. Reed delivered $744 to a messenger sent by the plaintiff to receive it, who paid it to Stoddard Smith the agent of Parker, the maker, from whom Parker received it. The money had been raised on the plaintiff’s note of $800 left with R. Reed, and which Was endorsed by him, and discounted at the bank-of Columbia, at the usual rate. It was not left With him -for discount, but he assumed this risque, and on its falling due, paid the money himself, as endorser to the bank-. The plaintiff afterwards, and within about a-year from the time, of the loan, paid R. Reed the $800; so that R. Reed, and not the plaintiff, had the premium. R. Reed told the plaintiff, on receiving his note, that if he Would send him Parkef’s note guarantied by certain persons, whom he named, he would deliver back the plaintiff’s note; This guaranty was afterwards drawn and signed, dated 28th October, 1816 ; but neither this nor Parker’s note-were ever delivered to R. Reed. Both remained with Abijah Reed, one of the guarantors; so that R. Reed’s only security for the money was the plaintiff’s note. Shortly before Parker’s first note became payable, he requested the loan of the money for another year, which "the plaintiff -granted on a substituted note for $800, With an additional endorser. This note was continued down by the like renewals, from time to time, to the note on which this action was brought.</p>

<p>In debt for the penalty of $250 in articles of agreement. The defendants demurred to the declaration ; and had judgment against them on the demurrer, with leave to withdraw the demurrer, and plead on payment of costs.</p> <p>The question was submitted, whether these should be supreme court or common pleas costs.</p>

Ejectment for part of lot No. 4, in the town of Ovid, in the county of Seneca, tried at the circuit in that county, June 3d, 1822, before Platt, late J. of the supreme court.

. At the general session in Saratoga county in May, 1821, the prisoners, Van Santvoord and Oakley, were jointly indicted for forgery. Held: that although the- particular day is not material in an indictment, yet where the law makes time material to the offence the day must be laid within that time by the indictment.

Ejectment tried March 32d, 1826, at the Madison circuit, before Williams, circuit judge. Verdict for the plaintiff subject to the opinion of the supreme court, on a case which is sufficiently stated in that opinion.

<p>Ejectment for part of lot No. 10, (Milton,) now Genoa, Cayuga county, commenced in January, 1822, and tried before Platt, (late) J. at the Cayuga circuit, June 1st, 1822, when a verdict was found for the plaintiff, subject to f0p0wjng cas6; with permission for either party to turn ft into a special verdict; It was admitted, on the trial, that letters patent were, on the 13th day of September, 1790, issued, and passed the secretary’s office the 19th of September 1791, to John McCloughry for the lot No. 10, of ° J which the premises in question are a part; that the patentee was born in Ireland, and came to this country in the year 1775 ; and was a lieutenant in the army of the United States in the revolutionary war, and died at the capture’ of Cornwallis, without issue ; that he had, when he died, five brothers, to wit, Alexander, Patrick, Thomas, Gilbert and William, and a sister of the name of Margaret, who were bom in order they are named; that Alexander and Thomas died without issue more . than thirty years since. Patrick died many years since, leaving *issue, Alexander, Thomas, William, Patrick and Jane. Alexander, the eldest son of Patrick, died on his passage to this country, about twenty-one years ago next September. He was coming to this country to claim the land granted to Lieutenant McCloughry. He (Alexander) left Thomas McCloughry, junior, his eldest son and children John, Elizabeth and Jane. Elizabeth is married to James Mills, and Jane to William Cook. The lessors of the plaintiff are William and Margaret, brother and sister of the lieutenant, Thomas, William, Patrick and Jane, the surviving children of Patrick, brother to the lieutenant, and Thomas McCloughry, junior, John, James Mills and Elizabeth his wife, and William Cook and Jane his wife, the children of Alexander, the son of Patrick, of whom Thomas is the eldest. That the lieutenant, if alive now, would be about 74 years old, he being the youngest in the family except William and Margaret. That William, the brother of the lieutenant, is still living, and Margaret, his sister, died without issue about one and a half years since. It was admitted that all these persons were born in Ireland, and were and are British subjects; and that Gilbert McCloughry, the brother of the lieutenant, came to this country about the year 1795, and is named in the act of the legislature, entitled “ An act to enable certain persons therein named to purchase and hold real estates within this state, passed April 3d, 1797.” That in the year 1796 he came on to' the lot, claiming it as sole heir to the lieutenant, and built a log house, and made a'small clearing thereon; and on the 24th day of February, 1797, for the consideration of $1000, conveyed by warranty deed the whole of the lot 10, excepting one hundred acres before conveyed to Michael Dow, to Daniel Avery, who, or bom fide purchasers under him, have ever since possessed the lot, and made valuable improvements. It is admitted that the defendant holds as a bond fide purchaser under Avery. It was also admitted that Thomas McCloughry, junior, one of the lessors of the plaintiff, for himself and for the other lessors of the plaintiff, before the commencement of this action, demanded possession of the premises in question, and offered to pay for the improvements, thereon, or submit, the improvements to appraisement, *which was refused by the defendant. It was further admitted, that in the year 1805, Thomas McCloughry, junior, one of the lessors of the plaintiff, came to this country.to claim the land in question. That he applied to the legislature in 1807, .and procured the passage of an act, entitled “ An act relative to land granted to John McCloughry,” passed 3d of April, 1807, ' '</p> <p>Alexander Rpss, a witness on the part of the plaintiff, testified that he knew Gilbert McCl'onghry, a brother of John the lieutenant, in Ireland; that he, the witness, removed to this .country in 1774, and is now 73 years of age; that Gilbert was a man when he was a boy ; thinks he was 15 or J6 years older than the witness 5 that he has heard of him in this country, but never saw him here, That more than twenty years ago he heard Gilbert Me»Clonghry had removed to Canada; but he does not know when he went, ruor bow long he had been gone before he heard this report. That he has never heard whether he was dead or alive. Levi Beardsley, another witness for the plaintiff, testified that he had made inquiries about Gilbert McCloughry, and learned that he had lived at or near Herkimer ; that he left there in 1798 or 1799 ; and that he had been unable to trape him beyond that time and place. It was further admitted, that the mother of lieutenant John McCloiighry, and the-wife of William Barber, were sisters by the name of Adams; the patentee’s father having mar-» tied Jane Adams, and William Barber having married bel sister Margaret Adams. That William Barber and Ms wife were both born and both died in Ireland, long before the declaration of independence of the United States, leaving at their decease only one child, a son by the name of Patrick, who came to America with his wife more than sixty years ago, and settled in Orange county in this state, where he died in September, 1797; and that he left surviving him four children, Ms heirs" at law, to wit, Margaret, Francis, John and Joseph, all of whom were born in Orange county, in the order they are named. That Margaret married John Davidson, a citizen of the United States, by whom she had six children, to wit, David, Jane, Margaret, Catharine, Alexander and Elizabeth, all of whom were born in the United *States, and are living, except Catharine, who is dead, and who died without issue, and whose mother, Margaret, is also dead. That Francis, the eldest son of Patrick Barber, was killed in battle in the revolutionary war, having been married, and leaving at his death two children, to wit, George and Francis, his heirs at law, both of whom are living, and citizens of the United States. That John and Joseph, the other two sons of Patrick Barber, are still living, and reside in the United States, And it was also admitted that all the relatives of the patentee on the part of his father, were and are citizens and subjects of Great Britain, and aliens to the United States. It is not known that any of the above descendants of Patrick Barber have ever claimed the premises in question. It is agreed that the admissions made in tMs case are and sha.ll be subject to all and every exception that might have been made or taken on the trial; and that all objections to the evidence and facts admitted, shall be and are hereby reserved. That all public and private acts of the legislature may be read and used on the argument.</p>

<p>Assumpsit for money had' and received; tried at the New York circuit, in January, 1826, before Edwards, C. Judge; when, under the charge of the judge; a verdict was taken for the defendant, with leave to the plaintiff to make a case, and with liberty to either party to turn it into a bill of exceptions or special verdict. The facts are fully stated in the opinion of the court.</p>

On error from the court of common pleas of Otsego county. Butcher sued Clarke on the 8th of January, 1821, by summons, in a justice’s court of that county; and declared that he, Dutcher, then was, and had been from the spring of 1785, in the possession and occupation of lot No. 36, containing 100 acres, in the Cherry Valley patent, as a tenant to Clarke, at an annual rent of 6d. sterling an acre, or £2 10, sterling for the whole lot; that the defendant Clarke, from that time…

Trespass, for taking, driving away, and converting three cows and a calf of the plaintiff, tried at the Westchester circuit, October, 1824, before Williams, C. Judge.

<p>In trespass qua,re clausam fregit, and for cutting wood and timber, contrary to the statute, (1 R. L. 525.) The plaintiff recovered $6, which the court at October term, 1824, trebled on motion; but they refused to treble the costs. (3 Cowen’s Rep. 346, S. C.) The defendant after-wards perfected a judgment in his own favor for his costs, which</p>

Placita of August term, 1823—Memorandums of warrants of attorney—memorandum of May term, 1823. \ Jefferson county, ss.

On the evening of yesterday, the 2nd August, the district attorney moved the court that Jesse Strang, who had just beén convicted hy a verdict of a jury, as a principal in the murder óf which Mrs. Whipple, the prisoner at the bar, now stood charged as accessory before the fact, should be brought *up and examined as a witness on the part of the prosecution.

<p>A creditor having obtained judgment, and procured his fi. fa, to be returned unsatisfied, may file his bill against a debtor of the defendant, to whom he has loaned moneys or sold goods on credit for the purpose of keeping the fund out of the reach of his (the defendant’s) creditors ; ar> chancery wm divert the payment from, the defendant to his creditor so filing his bill. If the creditors to whom the defendant loaned or sold are privy to the fraud, they may be compelled to pay immediately, though their debt was contracted on a credit; but if not privy to the fraud they may be compelled to pay the debt to the execution creditor at the expiration of the credit.</p> <p>Where there are sc judgment creditors of the defendant, holding different judgments, they need not be parties.</p> <p>The issuing and return of a fi. fa, does not give a lien on the fund; but the filing of the bill, or doing some other decisive act showing an intention to pursue the fund.</p>

<p>Whether in s^te^e^ and terminer having'sentenced a malefactor, upon conviction before them, to capital punishment, have power, after they have adjourned, on being afterwards, upon further examination, convinced of his innocence, to suspend his execution, or grant a reprieve, till the case can be laid before the pardoning power ? Quere.</p> <p>By the common law, the judges may reprieve, even after adjournment; and the only question is, whether this power be wanting here either from the frame and principle of our government, or is impliedly denied or withheld by the constitution. But vid. 2 R. S. 658.</p> <p>This question examined upon the constitution, upon principle and authority, in a correspondence between Clinton, governor, and EnwARns, circuit judge, president of the oyer and terminer, of the city of New York, hi a case (stated), wherein that court had reprieved the capital execution of a prisoner after sentence.</p>

Pattison, G. & H. Vail, N. & H. Weed, and A. Parsons, filed their bill, stating that, on the 28th of July, 1826, S. *Hull, M. Hopper, Z. Baker and S. F. Hervey, being seised in fee of a farm in the town of Saranac, Clinton county, made their bond to Parsons, in the penalty of $7000, conditioned to pay him $3732 75 ; viz, $500, with interest, and on the 1st of October, 1826; $500 on the 1st of June, 1827; and the residue in different instalments at several times after, with…

At the last oyer and terminer, holden in Montgomery county, (May, 1829,) the defendant was convicted of forging *an instrument which was set‘forth in the indictment as follows: “ A certain promissory note of hand, which said note has bé$h and is lost, and the tenor and substance of which said false, forged and counterfeited note is as follows, that is to say : 1 Threá^ípbnths, after date, I promise to pay Sebastian I. Shall, or beared the sum of three dollars, in shoemaking,…

[In the short progress of these reports, a period of less than seven years, the bar of this state have been called to mourn the loss of three of their proudest ornaments: Mr. John Wells, Thomas A. Emmet, and John V. Henry. I was enabled to sketch the life and character of the first, in a note to my second volume, A good account of the life and character of that gentleman was also afterwards given by Mr. Johnson, my immediate predecessor, at the close of 7 John. *Ch. Reports.